Time for the Clean Power Plan to Go, Endangerment Finding Should Be Next

by H. Sterling Burnett,

Even before the ink was dry on former President Barack Obama’s signature mandating the creation of Clean Power Plan (CPP) regulations, state governments and industry were rushing up the courthouse steps to challenge the plan and block its implementation.

Despite the fact CPP is just two years old, it has already traveled a long and winding road to its final oblivion (one hopes)!

CPP required states to reduce their electric power sector carbon-dioxide emissions by 32 percent below 2005 levels on average nationwide by 2030—part of Obama’s vain effort to fight against alleged human-created climate change. The emissions reductions were established on a state-by-state basis, with some states—especially those who generated a large portion of their electricity from cheap coal-fired power plants, primarily red states—having to reduce emissions by 40–60 percent. By contrast, states that already didn’t generate a significant proportion of their electricity by coal, typically blue states with comparatively high electric prices, had much lower emissions reduction targets. Some states were not required to reduce emissions at all.

A variety of utilities and other industries joined attorneys general from 27 states, more than half the states in the nation, to challenge CPP’s legality. Among the arguments states and industries raised against CPP were that the Environmental Protection Agency (EPA) exceeded its power under the 1970 Clean Air Act, violating powers historically reserved to the states to designate the appropriate sources of electric power within their borders. Others, including Laurence Tribe, a well-known professor of constitutional law at Harvard Law School, argued CPP was not just illegal, but was unconstitutional in both its design and execution.

Perhaps indicating it suspected the allied groups fighting CPP would prevail, on February 9, 2016, the U.S. Supreme Court placed a preemptive nationwide stay on CPP until all related court actions were finalized. This was an unprecedented decision.

Everything would soon change, however, because Donald Trump was elected president. Trump, who argued climate regulations were unnecessarily hampering domestic energy development and economic growth, directed EPA on March 28, 2017, to review CPP to determine whether it is justified. Following Trump’s directive, EPA issued an Advanced Notice of Proposed Rulemaking that proposed the repeal of the Clean Power Plan on October 16, 2017.

All this history and more is further detailed in comments made in response to EPA’s proposed repeal of CPP submitted by Peter Ferrara, a senior fellow for entitlement and budget policy, and Isaac Orr, a research fellow for energy and environment policy—both colleagues of mine at The Heartland Institute.

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